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Tuesday, January 08, 2008

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Senate Judiciary Committee wastes no time on first day

The Senate Judiciary Committee got right down to work on the first day of the second year of the 105th General Assembly, adop ting a resolution to amend the state constitution to allow restrictions on abortion (SJR 127); clearing a bill to create an additional judgeship in the 22nd judicial district (SB 901); and recommending a bill (SB 38) permitting concealed weapons to be car ried in places that serve alcohol.

TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search al l opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALin k at the TBA's Membership Central.

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You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

CHEVON TRAMAINE MAYETTE v. THOMAS JOSEPH WHITE

Court: TCA

Attorneys:

Thomas J. White, Knoxville, Tennessee, pro se.

Gregory P. Isaacs, Knoxville, Tennessee, for appellee.

Judge: FRANKS

Respondent has appealed from a sentence punishing him for numerous violations of the Trial Court's orders. No transcript of the evidence was filed. The appeal raise s issues of fact. We affirm.

http://www.tba2.org/tba_files/TCA/2008/mayettec_010807.pdf

STATE OF TENNESSEE v. THOMAS ANDERSON, JR.

Court: TCCA

Attorneys:

Thomas Anderson, Jr., Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Appellant, Thomas Anderson, Jr., appeals from the Williamson County Circuit Court's order denying his motion to receive pretrial jail credit. The Appellant contends that, pursuant to Tennessee Code Annotated section 40-23-101(c), the trial court erred by not applying pretrial jail credit to his six-year sentence for the sale of cocaine. Following our review of the record and the parties' briefs, we conclude that the trial court did not have jurisdiction to rule on the Appellant's motion because the proper avenue for relief regarding the application of his pretrial jail credit is through the Uniform Administrative Procedures Act, Tennessee Code Annotated sections 4-5 -101 to -325. Consequentlwe vacate the trial court's order denying the Appellant's motion. We dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2008/andersont_01 0807.pdf

MONTEZ DICKERSON V. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Paula Ogle Blair, Nashville, Tennessee, for the Ap pellant, Montez Dickerson.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Sophia S. Lee, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Bret Gunn, Assistant District Attorney General, for the Ap pellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Montez Dickerson, pled guilty to delivery of a controlled substance under .5 grams, and the trial court sentenced him a s a persistent offender to ten years in prison. The Petitioner filed a petition for post-conviction relief, which was amended by appointed counsel. In the petition, the Petitioner alleges that he received the ineffective assistance of counsel and that hi s guilty plea was not voluntarily entered. The post-conviction court dismissed the petition after a hearing. The Petitioner appeals that dismissal, and we affirm the judgment of the post- conviction court.

http://www.tba2.org/tba_files/TCCA/2008/dickersonm_010807.pdf

KERRY DOWELL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Trudy Bloodworth (on appeal) and Philip Perez (at post- conviction hearing), Nashville, Tennessee, for the appellant, Kerry Dowell.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee. < br />
Judge: WELLES

The Petitioner, Kerry Dowell, appeals from the Davidson County Criminal Court's order dismissing his petition for post-conviction relief, arguing that the dismissal wa s erroneous because he did not receive the effective assistance of counsel at trial guaranteed him by the United States and Tennessee constitutions. Following our review, we conclude that the post-conviction court did not err by denying post-conviction relief. Consequently, we affirm the post-conviction court's order of dismissal.

http://www.tba2.org/tba_files/TCCA/2008/dowellk_010807.pdf

STATE OF TENNESSEE v. TONY HOOVER

Court: TCCA

Attorneys:

Michelle Lynn (at trial) and Garland Ergüden (on a ppeal), Memphis, Tennessee, for the Appellant, Tony Hoover.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; Scot Bearup, Assistant District Attorney General, for the A ppellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Tony Hoover, pled guilty to two counts of rape and two counts of incest for actions against two of his daughters. The trial court sentenced him to four years on each incest count, and ten and one-half years on each rape count. The incest sentences were run concurrently with the rape convictions, but the rape sentences were run consecutively, for an effective sentence of twenty-one years. The Defendant challenges the trial court's decision to run his sentences consecutively. Upon review, we affirm the judgments of the trial court.

htt p://www.tba2.org/tba_files/TCCA/2008/hoovert_010807.pdf

STATE OF TENNESSEE v. CHARLES RANDOLPH PHELPS

Court: TCCA

Attorneys:

Rayburn McGowan, Jr., Nashville, Tennessee, for the appellant, Charles Randolph Phelps.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and John Zimmerman, Assistant District Attorney G eneral, for the appellee, State of Tennessee.

Judge: MCLIN

Pursuant to a plea agreement, the defendant, Charles Randolph Phelps, pled guilty to robbery and possession of less than .5 grams of cocaine for resale. He received sentences of six years for his robbery conviction and three years for his possession conviction to be served consecutively. On appeal, the defendant argues that the trial court erred by denying alternative sen tencing and imposing continuous confinement. Following our review of the parties' briefs, the record, and applicable law, we hold that the trial court properly denied alternative sentencing and affirm the court's judgment.

http://www.tba2.org/tba_files/TCCA/2008/phelpsc_010807.pdf

STATE OF TENNESSEE v. KENDRICK D. RIVERS

Court: TCCA

Attorneys:

Colin Morris, Jackson, Tennessee (at trial); and Kendrick D. Rivers, Henning, Tennessee, pro se (on appeal).

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General; Jerry Woodall, District Attorney General; and Angela R. Scott, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Kendrick D. Rivers, was convicted of possession of more than .5 grams of cocaine with intent to sell and/or deliver, evading arrest, resisting arrest, an d criminal trespass. The trial court imposed an effective sentence of twelve years' incarceration. In this appeal, the defendant asserts (1) that the evidence is insufficient to support his conviction for possession of cocaine; (2) that one of the jurors had a bias against him; and (3) that the State engaged in prosecutorial misconduct by knowingly using false testimony.1 Finding no error in the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/riversk_010807.pdf

STEPHEN ANTHONY SCOTT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Stephen Anthony Scott.

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel West Harmon, Assistant Attorney General; John Carney, District Attorney General, and Daniel Brollier, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: SMITH

Petitioner, Stephen A. Scott, was convicted by a Montgomery County jury of one count of aggravated robbery, one count of attempted aggravated robbery, one count of especially aggravated kidnapping, two counts of aggravated kidnapping, one count of kidnapping, and one count of attempted robbery. Petitioner appealed his convictions and sentence. See State v. Stephen Anthony Scott, No. M2004-00927-CCA-R3-CD, 2005 WL 1334399 (Tenn. Crim. App., at Nashville, Jun. 7, 2005), reh'g denied, (Tenn. Crim. App., at Nashville, Jul. 18, 2005), perm. app. denied, (Tenn. Oct. 31, 2005). On appeal, this Court merged several of Petitioner 's convictions and remanded for corrected judgments. Id. at 8. Further, this Court remanded for resentencing on one count of aggravated kidnapping because the trial court failed to apply a statutory mitigating factor. Id. This Court subsequently denie d a petition for rehearing on July 18, 2005, and the Tennessee Supreme Court denied permission to appeal on October 31, 2005. Subsequently, Petitioner sought post- conviction relief on the basis of ineffective assistance of counsel at trial. After a hearing, the post- conviction court dismissed the petition. Petitioner f iled a timely notice of appeal. On appeal from the dismissal of the post-conviction petition, Petitioner argues that trial counsel was ineffective by failing to investigate witnesses and prohibiting Petitioner from participating in jury selection. Because we determine that the record supports the post -conviction court's ruling that trial counsel was not ineffective, we affirm the post-conviction court's dismissal of the post-conviction petition.

http://www.tba2.org/tb a_files/TCCA/2008/scotts_010807.pdf
CLYDE SMITH v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the appell ant, Clyde Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; John Wesley Carney, Jr., District Attorney General; and Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Clyde T. Smith, appeals the denial of his petition for post-conviction relief. He contends that trial counsel was ineffective for failin g to anticipate or raise a challenge to the enhancement of his sentence as unconstitutional pursuant to Blakely v. Washington, 542 U.S. 296 (2004). We acknowledge, pursuant to Blakely; Cunningham v. California, 549 U.S. __, 127 S. Ct. 856 (2007); and Sta te v. Edwin Gomez II, No. M2002-01209-SC-R11-CD, 2007 Tenn. LEXIS 884, at *1 (Tenn. Oct. 9, 2007), that portions of our previous sentencing scheme have been declared unconstitutional. However, neither Blakely, Cunningham, nor Gomez II, applies to the fac ts of this case because the career offender statute found by the trial court was the result of prior convictions not prohibited by the cases cited above and the trial court did not enhance the petitioner's sentence based upon a finding of facts that the above cited cases hold must be found by a jury. Upon these facts, the trial court had no discretion but to impose the only sentence provided for by law, fifteen years. The judgment denying post-conviction relief is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/smithc_010807.pdf

TODAY'S NEWS

Legislative News
Legal News
Disciplinary Actions
TBA Member Services

Legislative News

Proposed rules amendments filed today

The Tennessee Supreme Court today filed proposed amendments to the Rules of Appellate Procedure, Rules of Civil Procedure, Rules of Criminal Procedure, Rules of Evidence and Rules of Juvenile Procedure with the Tennessee General Assembly. Subject to approval by a joint resolution of both Houses of the General Assembly, the rules will take effect on July 1.

Read the proposed amendments

Legislative leaders announce new web sites

Party leaders in both the state House and Senate have launched new web sites recently, reports the News Sentinel. Senate Democrats will soon be at www.tn_senatedems.com< /a>, while Senate Republicans have set up shop at www.tnsenate.com. In the House, the Democratic Caucus is at www.tnhousedems.com. And the Republican Caucus Web site can be fou nd at www.tnhousegop.org.

Legal News

Gibson will not face criminal charges

A Putnam County grand jury has declined to bring criminal charges against a prosecutor who corresponded with a convict on her legal case. District Attorney Bill Gibson is accused of helping Tina Sweat of Coo keville, who pleaded guilty to drug offenses and then sought aid from Gibson in getting her record expunged. Prosecutors had asked the grand jury to indict Gibson on charges of official misconduct and tampering with or fabricating evidence in Sweat's case .

WSMV-TV has more

'Mechanics of execution' focus of justice's questions

Justice Anthony M. Kennedy, the possible swing vote in a lethal injection case before the U.S. Supreme Court, focused on the specifics of Kentucky's procedure in oral arguments Tuesday. Kennedy questioned th e lawyers about the mechanics of the procedure and the training and experience of the executioners, SCOTUSblog reports.

Go to the blog of the Supreme Court of the United States

6th Circuit says 'No Child Left Behind' suit can go forward

A Michigan school district may pursue its lawsuit against the federal government over funding for the No Child Left Behind Act, the Cincinnati-based 6th U.S. Circuit Court of Appeals ruled Monday.

UT's Ansley wins 'Great Teacher' award

Recently retired University of Tennessee College of Law Professor Fran Ansley was honored with the 2007 SALT (Society of American Law Teachers) Great Teacher Award Jan. 5 in New York City.

Ford and Lee to be tried together

Edmund Ford and Joseph Lee were re-indicted today on federal extortion and bribery charges, the same charges they already face but repackaged by prosecutors who want to try the two men together. The men are accused in the July indictment's remaining five counts of trading favors, with City Council member Ford voting for Lee as president and CEO of Memphis Light, Gas and Water Division. In return, authorities allege, Lee allowed Ford to dodge utility payments, racking up bills of some $16,000 without penalty.

The Commercial Appeal reports

Lawyer tells client to disobey judge, faces contempt charges

Franklin attorney Connie Reguli says she was standing up for her client's constitutional rights when she told the client to disobey a judge's order in a divorce case, saying Judge R.E. Lee Davies was out of line when he changed a visitation schedule involving a 16-year-old boy. Davies responded by issuing an order asking Reguli to appear in criminal court Jan. 29 to "show cause why she should not be held in criminal contempt for her willful disobedience or resistance" to his ruling.